State v. Diaz

• Decision Date: 06 September 2002
• Docket Number: No. 990511-CA.,990511-CA.
• Citation: 2002 UT App 288,55 P.3d 1131
• Parties: STATE of Utah, Plaintiff and Appellee, v. Anthony Allen DIAZ, Defendant and Appellant.
• Court: Utah Court of Appeals

55 P.3d 1131

2002 UT App 288

STATE of Utah, Plaintiff and Appellee, v. Anthony Allen DIAZ, Defendant and Appellant.

No. 990511-CA.

Court of Appeals of Utah.

September 6, 2002.

Wesley M. Baden, Uintah County Legal Defender, Vernal, for Appellant.

Mark L. Shurtleff, Attorney General, and Karen A. Klucznik, Assistant Attorney General, Salt Lake City, for Appellee.

Before DAVIS, GREENWOOD, and THORNE, JJ.

OPINION

THORNE, Judge:

¶ 1 Defendant Anthony Allen Diaz was tried before a jury and convicted of child kidnaping, aggravated kidnaping, and aggravated sexual abuse of a child.¹ He now appeals from his conviction and sentencing for child kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-301.1 (1997).² We affirm.

BACKGROUND

¶ 2 "On appeal, we review the record facts in a light most favorable to the jury's verdict and recite the facts accordingly. We present conflicting evidence only as necessary to understand issues raised on appeal." State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citations and quotations omitted).

¶ 3 On May 26, Memorial Day, 1997, Diaz approached J.B., an eight-year-old girl, as she sat in front of a Wal-Mart store attempting to give away a litter of kittens. After briefly talking to J.B., Diaz asked her for a kitten. Although Diaz was carrying nothing, he told J.B. that he needed her to carry the kitten to his car. J.B. agreed and Diaz then led her away from the front of the store, where her mother had left her, and around the side of the building into the west side parking lot where Diaz had parked his car. At the car, Diaz grabbed the kitten from J.B., threw it into the car, and grabbed J.B.'s arm with sufficient force to cause bruising. He then pulled her toward him, pulled down his shorts, exposed his genitals, and told J.B. to "look at my big dick."

¶ 4 J.B. screamed, freed her arm from Diaz's grasp, and ran back toward the front of the store. Hearing the screams, J.B.'s mother, who had been in the store, ran out to find J.B. trembling and obviously frightened. J.B. told her mother what had happened, where it had happened, and described her assailant in very rough and broad terms. Soon thereafter, a police officer arrived and J.B. related the incident to him, again including a general description of her assailant and his car.

¶ 5 The police soon identified Diaz as a possible suspect. Therefore, the investigating officers asked J.B. to view a photo lineup. Prior to J.B.'s arrival at the police station, the investigating officers constructed a photo array that included photos of eight men who generally fit the rough description J.B. had provided. Prior to presenting J.B. with the array, the investigating officers asked her if she remembered what had happened on May 26, and if she remembered her assailant. After J.B. responded that she remembered both the incident and the man, the officers showed her the array. J.B. quickly identified the photo of Diaz as the only photo that looked like her attacker. Based on this identification, the investigating officers interviewed Diaz concerning the incident.³ During the interview, Diaz made a series of marginally inculpatory statements. However, he consistently denied being at the Wal-Mart on the day of the assault and denied playing any role in the assault. Diaz failed to convince the officers of his innocence, and, following the two-hour interview, Diaz was arrested.

¶ 6 Ultimately, Diaz was charged with one count of aggravated kidnaping, or in the alternative, one count of child kidnaping, and one count of aggravated sexual abuse of a child. Following a November 1998 jury trial,⁴ Diaz was convicted of aggravated kidnaping, child kidnaping, and aggravated sexual abuse of a child.⁵ On February 2, 1999, the trial court held a sentencing hearing wherein the court indicated its intention to sentence Diaz consecutively to ten years to life for aggravated kidnaping, and five years to life for aggravated sexual abuse of a child. But, based upon the prosecutor's request, the court stayed entry of the sentence until March 1, 1999, and granted the prosecutor an opportunity to submit information concerning Utah's treatment of habitual offenders.

¶ 7 In the interim, the trial court concluded that the nature of the conduct underlying Diaz's convictions warranted a merger analysis as articulated in State v. Finlayson, 956 P.2d 283 (Utah Ct.App.1998), aff'd, 2000 UT 10, 994 P.2d 1243. Accordingly, the trial court requested that the parties prepare to argue the applicability of merger to this situation, and rescheduled sentencing until March 25, 1999. Following a brief hearing concerning the merger issue, the trial court merged Diaz's aggravated kidnaping conviction into his conviction for aggravated sexual abuse of a child.

¶ 8 The trial court then directed the State to choose between sentencing Diaz for aggravated sexual abuse of a child or for child kidnaping. After a short period of consideration, the State asked that Diaz be sentenced under the child kidnaping statute. Therefore, in a proceeding wherein the trial court also sentenced Diaz for separate charges to which he had pleaded guilty previously, the trial court sentenced Diaz to fifteen years to life in prison for child kidnaping. Diaz now appeals.⁶

ISSUES PRESENTED AND STANDARDS OF REVIEW

¶ 9 Diaz argues that several errors occurred warranting reversal of his conviction or, in the alternative, remand for the purpose of resentencing him for the appropriate conviction.

¶ 10 Diaz first argues that the trial court erred in failing to recognize that, under these circumstances, the crime of child kidnaping merges into the crime of aggravated sexual abuse of a child. Merger issues present questions of law, which we review for correctness. See State v. Finlayson, 2000 UT 10, ¶ 6, 994 P.2d 1243

. Subordinate to this argument is Diaz's claim that the trial court erred in permitting the State to choose between sentencing Diaz under the child kidnaping statute or the aggravated sexual abuse of a child statute and consequently sentencing Diaz to the longer term. We review the sentencing decisions of a trial court to determine whether the trial court exceeded its permissible range of discretion. See State v. Houk, 906 P.2d 907, 909 (Utah Ct.App.1995).

¶ 11 Diaz further argues the trial court failed to make the findings required to justify its departure from the middle, and therefore default, minimum mandatory prison term under the child kidnaping statute. Diaz's failure to preserve this claim results in our reviewing it for plain error. See State v. Labrum, 925 P.2d 937, 939-40 (Utah 1996)

.

¶ 12 Next, Diaz argues that the State presented insufficient evidence to support his convictions for either child kidnaping or aggravated sexual abuse. As a general rule, we will not consider a defendant's sufficiency of the evidence claim if the defendant has failed to raise it before the trial court absent, inter alia, a demonstration by the defendant that the trial court committed plain error by submitting the case to the jury. See Holgate, 2000 UT 74

at ¶¶ 11, 17, 10 P.3d 346.

¶ 13 Diaz further argues that his trial counsel was ineffective on several fronts. We review ineffective assistance of counsel claims raised for the first time on appeal for correctness. See State v. Silva, 2000 UT App 292,¶ 12, 13 P.3d 604

.

¶ 14 Finally, Diaz argues that even if the individual errors are independently insufficient to support reversal of his convictions, the cumulative effect of these asserted errors is sufficient to justify reversal. "Under the cumulative error doctrine, we will reverse a jury verdict `only if the cumulative effect of the several errors undermines . . . confidence that a fair trial was had.'" State v. Widdison, 2001 UT 60, ¶ 73, 28 P.3d 1278 (citations omitted).

ANALYSIS

I. Merger

¶ 15 Diaz first argues that under the merger doctrine, articulated in Finlayson, 2000 UT 10, 994 P.2d 1243, the trial court should have merged his child kidnaping conviction into his aggravated sexual abuse of a child conviction. We disagree.

¶ 16 We note initially that the question presented is somewhat unique.⁷ Rather than addressing the merger of either kidnaping or aggravated kidnaping into a charged companion crime, see, e.g., Finlayson, 2000 UT 10

at ¶ 11, 994 P.2d 1243 (merger and aggravated kidnaping); State v. Couch, 635 P.2d 89, 92-93 (Utah 1981) (merger and kidnaping), here we are dealing with more specific criminal act: child kidnaping.

¶ 17 Merger is a judicially-crafted doctrine available to protect criminal defendants from being twice punished for committing a single act that may violate more than one criminal statute. See Finlayson, 2000 UT 10

at ¶ 19, 994 P.2d 1243; see also State v. Buggs, 219 Kan. 203, 547 P.2d 720, 726 (1976). Merger is most commonly applied to situations involving a defendant who has been charged with committing both a violent crime, in which a detention is inherent, and the crime of kidnaping based solely on the detention necessary to the commission of the companion crime. See Finlayson, 2000 UT 10 at ¶ 19, 994 P.2d 1243; Buggs, 547 P.2d at 726. When the detention involved is no longer nor larger in scope than necessary to commit the companion crime, courts have determined the detention to be inherent within the companion crime and do not permit double punishment. The reasons underlying this doctrine are perhaps best explained by the Utah Supreme Court in Couch, where the court stated:

[K]idnaping statutes typically do not specify a duration of time or the circumstances under which the victim must be detained or how far the victim must be transported for a kidnap to occur[. Thus, a] literal application of such statutes could transform virtually every rape and robbery into a kidnaping as well.

635 P.2d at 92.

¶ 18 As a threshold matter, we must compare the relevant language of our kidnaping and aggravated kidnaping statutes with the relevant language...